Crane v. Cranitch — 52 N.Y. St. Rep. 515

Majority

p. 515

Thomas Crane, App'lt, v. Patrick J. Cranitch et al., Resp'ts.

(City Court of New York, General Term,

Filed May 9, 1893.)

Headnote

Execution—Omission of indorsement as to defendant not served.

An omission to indorse on an execution against partners the name of the partner not served does not make the execution void, but it may be amended by an order of the court.

Appeal from order setting aside an execution as void.

Moses Herrman, for app’lt; William Allen, for resp’ts.

This is an appeal by the plaintiff from an order herein setting aside as void an execution issued to the sheriff of the city and county of Kew York, on a judgment entered on March 6, 1898.

This action was commenced by the service of a summons on the defendant, Patrick J. Cranitch, on the 1st day of March, 1893.

Judgment was entered against Patrick J. Cranitch and Jeremiah A. Cranitch, composing the firm of Cranitch Brothers, Jeremiah A. Cranitch not summoned.

Execution was thereupon directed to the sheriff to collect the said judgment out of the personal property of the defendants, and no reference was made in the said execution to the fact that one of the defendants had not been served.

It appears, however, that subsequently plaintiff’s attorney-served on the sheriff a notice directing him to levy only out of the individual property of the judgment debtor, Patrick J„ Cranitch.

A motion was subsequently made to vacate the execution, which motion was granted and this appeal taken.

The learned judge below in granting the motion held that the execution did not comply with § 1934 of the Code, and hence the same was void. With this contention we cannot agree.

It is true that the section referred to provides that the attorney must indorse upon the execution a direction to the sheriff containing the name of each defendant who is not summoned, and restricting the enforcement of the execution, yet in the next section provision is made that while the sheriff shall not enforce the judgment against the person not summoned, he is directed to collect it out of the property held jointly with the other defendants served.

In this case it appears that the defendants were co-partners, and the fact that the attorney failed to indorse upon the execution the name of the one partner not summoned did not make the execution void, but it could be amended as requested by the plaintiff’s attorney by an order of this court.

In Produce Bank v. Morton, 67 N. Y., 202 , it was held that on an application to set aside an execution for a similar defect, that

p. 516

it would have been perfectly competent to have directed an amendment of the judgment and docket, and allow the execution to stand.

The defect was one of form merely, and all the requirements of the statute had been substantially complied with.

The order appealed from must, therefore, be reversed, with costs.

Ehrlich, Ch. J., concurs.